Planning applications are part of the staple diet of local council business. This chapter focuses on the mechanics of getting a favourable decision on a given planning application. The good planning grounds on which you can object are dealt with in Section 2.
WHAT IS “DEVELOPMENT”?
Some things are beyond the remit of the planning system altogether e.g. much of agriculture and forestry. This is because, in 1947 when the planning system was set up, it was thought that food production in the countryside would not cause amenity problems. The advent of industrial agriculture has meant that intensive livestock units, with their euphemistically named “dirty water lagoons” i.e. 14m gallons of pig’s urine, now require planning permission, as does “horsey culture”.
According to the Town and County Planning Act 1990, “Development “means the carrying out of building, engineering, mining or other operations in, on or over land”. Taken literally, this would mean draconian controls, so “permitted development” was invented to take off the pressure from private individuals, businesses and public service providers: see The Town and Country Planning (General Permitted Development) Order 1995. The type of permitted development disputes most likely to come before local councils are those concerning housing, agriculture and forestry, caravans, and temporary uses such as youth camps or boot fairs. There have been various updates, most noteworthy are two concerning housing in 2008: Statutory Instrument 2008 No.675 on renewable energy and Statutory Instrument 2008 No.2362 on housing extensions. For those local councils for whom polytunnels are an issue, there has been some clarification following a High Court challenge by R. Hall Hunter Partnership v First Secretary of State 2006, as to which developments require planning permission, or a retrospective application, and which are permitted development.
For those who like a more interactive approach, the Planning Portal has published fun guides to explain permitted development for houses and terraces, including flats, shops and basements. These are available in the General Public section of the Planning Portal: www.planningportal.gov.uk. It is important that local councils know what can and cannot be done under permitted development rights because the 1995 Order has been amended a number of times and the views of planning officers are not always reliable.
Within permitted development, “Changes of Use” is a very important category. Uses are grouped into classes by the government and changes of use within a given class will not need planning permission. From time to time the Use Classes Order is updated in order to reflect changing needs and technology e.g. the internet cafe.
Permitted Development rights may be curtailed by Article 4 of the Permitted Development Order 1995 cited above. An Article 4 Direction could be used, say, to stop an outbreak of plastic windows and doors in a conservation area or stone cladding elsewhere.
If a landowner has any doubt about the existing or proposed use of land in planning terms, he or she may apply for a Certificate of Lawful Use from the local planning authority (LPA). The Certificate is likely to be granted unless there are ongoing enforcement proceedings in progress. If your council wishes to dispute it, produce written and photographic evidence to disprove the claim.
Beyond these special cases lies “development”. This falls into two categories:
Operations: these include building, engineering and mining. Sounds simple but some of the best brains in the country have been employed in deciding what constitutes a structure. Basically if it is anchored to the ground permanently it is likely to fall into this category. Until 1991 demolition was not controlled, apart from in conservation areas and listed buildings. Since then the Government’s efforts to control demolition would have delighted the Medieval Schoolmen. If your council is concerned about the demolition of a building, it would be well advised to consult a lawyer because there are so many pitfalls. Mining operations are defined as the removal of any substance from the land with the exception of peat for home consumption.
Material Change of Use: “Material”is a term much used in planning. It always meanssubstantial rather than just trivial; there must be physical implications; it must have planning implications such as amenity or impact on public services. With regard to a change of use, there must be an identifiable “change” and this can include an intensification of the same use. Those for which there is no use class, and therefore beyond the scope of the Use Classes Order are known as sui generis, and require planning permission. They are there for widely different reasons: from theatres to save them from closure to Formula 1 race tracks, amusement arcades and scrap metal merchants who may not be the ideal neighbours!
Whereas “operations” may entail a change of use, a “Material change of use” does not allow any significant alteration of the property.
REPEATED PLANNING APPLICATIONS
There are developers who try to wear down the LPA and local people with repeated planning applications for substantially the same development on the same site. LPAs have always had the power to refuse to determine such an application if it had been to appeal within the last two years. In 2005 this power was extended to include listed building and conservation area consents and others. More important, on a day to day level, is the power to refuse similar applications even if they have not gone to appeal. Of course the fun starts with defining what a “similar” application is. If an applicant considers that the LPA is being pedantic, judicial review is a possibility. See Circular 08/05 Changes to the Development Control System.
MONITORING AN APPLICATION
How do you know that an application has arrived? Basically the bigger the scheme the more notice you have of its coming. It is likely to be heralded by banner headlines in the local press or even the national or regional media. Whatever the scale of the project the application has to be properly registered and fees paid before the formal process of consultation and decision making starts. In order to have the statutory right to receive planning applications local councils have to register with their LPA. In fact this gives you the right to have them, not to have them sent to your clerk: there are LPAs which have said “Fetch!” For its part, the LPA should not determine the application before it has heard from the local council, or 14 days has elapsed, whichever occurs first. See The Town and Country Planning (General Development Procedure) Order 1995, Article 13.
In this cyber age, local councils are being encouraged by their LPAs to register with the Planning Portal in order to receive and respond to applications via the internet. A leaflet they have produced for Local Councils entitled “Introducing the e-Consultation Hub to Parish, Town and Community Councils (Revised)”(Product Code PP028),Your council will need broadband access, and this is a major problem in rural areas. For those of you concerned with financing the technology there are grants available from the National Lottery (http://www.lotteryfunding.org.uk/) and BT (http://www.btcommunityconnections.com/) Those who have linked up to the Hub will be able to view not only the application but also its supporting documents like plans and drawings of the proposed development.. They will also be able to see the submissions of others, be they the all important statutory consultees or local citizens. They will be able to keep track of the number of days remaining in the consultation period, and be electronically notified when the decision has been made.
TYPES OF PLANNING PERMISSION
Planning applications come in two varieties:
Outline, with reserve matters submitted at a later stage.
Full planning permission.
Outline planning applications can only be used for buildings, not for engineering, mining or other operations, or change of use. Typically an Outline Planning Application is used to test “the temperature of the water” for a proposal of this type on a certain tract of land. Any outline application now has to be accompanied by a Design and Access Statement which explains the applicant‘s approach to the proposal, and the underlying thought process which has led to this particular design and layout given the physical constraints and social and economic aspirations for the area. As a minimum, information is required on proposed uses, the amount of each use, the indicative layout of the site, and the parameters of each building and likely points of access.
Design and Access Statements
A good D&A statement will tell the story of how the scheme has reached this stage, including ideas which were rejected en route. Warning: lots of pretty pictures can be used to sell the scheme and/or justify a predetermined solution. Good design need not be about using expensive materials. Rather it is about the efficient use of land and spaces in order to create spaces which lift your spirits. It ought to be built into the scheme from the inception rather than grafted on because there is a public outcry. Cries of penury should be ignored: a well designed private sector scheme using materials that last will attract buyers, even in times of recession; public sector schemes will be ongoing sources of civic pride, aid economic regeneration and have low maintenance costs.
Tips on what to look for in a D&A statement are to be found in CABE’s useful publication Design and Access Statements: how to write ,read and use them. All too often what is submitted by both the private and public sector is no more than an old-style supporting statement with a new title. Local councils should know what the standards are so they can keep developers and their LPA up to the mark. D&A Statements are a very important tool in the fight for meaningful public participation.
Precisely how much supporting information is required depends on the discretion of the LPA. For Listed Buildings and Conservation Areas information has to be included at outline stage on access, appearance, landscaping, layout and scale and the Design and Access Statement has to be tailored to the specific details of a listed building and its surroundings. If your council feels that more information is required in order to make a decision in principle, then lobby the LPA.
Typically reserved matters include layout, scale, appearance, landscaping and access. If these details are not submitted to the LPA, for detailed planning permission, known as reserve matters, within three years of the granting of outline permission, planning permission could lapse, and building must commence within 2 years That said, if either or both the outline permission and reserve matters go to appeal matters can take much longer. There are ways and ways of querying the principle laid down in a outline permission either by an LPA or a Planning Inspector.
Full Planning Permission, as could be guessed, is a combination of outline and detailed planning consent. Typically this procedure is used when the proposal is contentious so do ask your LPA to require a full planning application if sufficient detail is not provided. Then you will have the advantage of seeing the exact layout, dimensions and use of materials proposed rather than battling with indicative illustrations which have more to do with promoting public relations than the eventual appearance. Currently full planning permissions run for three years but are about to revert back to five because so many schemes have ground to a halt the current recession.
There are two other types of permission which are used but rarely:
A Temporary Planning Permission is used in a situation where the LPA wishes to keep an eye on the site to make sure that the applicant is making a success of a real venture rather than using it as a ruse to achieve an objective to which the LPA wouldn’t consent e.g. a “farm” for rare breeds of animals when that is just an excuse to build a house in open countryside. It is amazing how quickly livestock can vanish once full permission is granted. A temporary permission should never be given for an inherently harmful proposal
A Personal Planning Permission. This is used when the site would not normally get permission for this use but they are prepared to allow it because of the personal circumstances of an applicant e.g. a celebrity chef setting up a restaurant or a case of extreme compassionate grounds.
In both instances the special nature of this application will be specified in the planning conditions. For further details see DoE Circular 11/95: The Use of Conditions in Planning Permission.
ACCOMPANYING INFORMATION
1. Planning Brief
Very often large sites, which come on the market after being in one use for many years, require a Planning Brief. Those in the public sector could be old Ministry of Defence sites and those in the private sector may include redundant factories. If your council has an interest in such a site either because it is in your patch or you would be affected by the site’s redevelopment e.g. traffic increase, then find out whether the LPA intends to produce or commission a development brief. A matter which is often contentious is that consultants commissioned to undertake the brief are then used by the developer to provide information for the ensuing planning application. This smacks of collusion especially if the views of the public were ignored. A way to avoid this is for the LPA to require a would-be applicant for the money to undertake a development brief on the proposed site and then commission another consultancy to formulate the brief. So find out the situation before the study gets underway and help the LPA to avoid potential conflicts of interest.
Its purpose is primarily to bring together all the policies and constraints which apply to the site, outline possible ways of reconciling conflicts and suggest what uses might be appropriate. The Government wants communities to participate in the formulation of development briefs so let your LPA know that your council would like to comment on the draft. Before it arrives it is a good idea to read the Government’s Planning and Development Briefs a Guide to Better Practice1997 so that you can see whether the development brief measures up to the appropriate standards.
A development brief may become a Supplementary Planning Document (SPD) which gives it more weight as a material consideration, if it has been out to public consultation and adopted by a council resolution.
Environmental Impact Assessment
Environmental Impact Assessment is a process which is applied to developments which are likely to have significant environmental effects. The process consists of widespread consultation before and after the production of detailed documents on a whole range of possible impacts tailored to that type of development: the documents are collectively known as the Environmental Statement.
The Regulations governing the process are set out in The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. An invaluable help is assessing what constitutes “significant environmental effects” can be found in DETR Circular 02/99.
From the point of view of a developer the EIA process takes time and costs money. Therefore they will either go to extraordinary lengths to avoid it e.g. by submitting a proposal which is below the indicative thresholds set out the 1999 Regulations and Circular, or see it as a public relations opportunity to sell a scheme to development-hungry, cash strapped LPA and sceptical local community.
The first problem is to decide whether EIA is required. Developments for which EIA is mandatory are set out in Schedule 1 of the 1999 Regulations. These are the usual suspects - airports, power stations, deep water ports, chemical works etc. The fun starts with the types of development set out in Schedule 2 where EIA is discretionary.
The Secretary of State’s view is that generally EIA will be needed for:
major developments which are of more than local importance;
developments proposed for sensitive or vulnerable locations;
developments with unusually complex and potentially hazardous environmental effects.
Further guidance is to be found in Schedule 3 of the 1999 Regulations. If developers have any doubt about whether EIA is necessary they should approach the LPA or the successor to the Government Office for an opinion: this is known as “screening”. With regard to LPAs, all too often some junior planning officer is just overawed by the professional team of a big company, promising jobs and what seems to an LPA, substantial sums, but is in reality mere peanuts, and so the case officer “agrees with the company” that no EIA is required. If your council feels that an EIA is essential or an inadequate one has been provided, appeal to the Secretary of State for a scoping opinion, and send chapter and verse on those detrimental effects. If a case is controversial enough to be called-in by the Secretary of State for his or her decision, then answer is likely to be “Yes”.
What should go into an Environmental Statement? This is set out in Schedule 4 of the 1999 Regulations. Obviously precisely what is relevant depends on the proposal. Developers usually seek a “scoping” opinion from the LPA or the Secretary of State in the case of call-ins. While it is not compulsory to cover all the topics in the way requested, developers are likely to be delayed by calls for further information under Regulation 19. Your council can lobby for further information via the LPA or the Secretary of State.
In practice you should know about a potential EIA development long before the application is lodged because developers make the most of the opportunity to sell the idea to the LPA and local community: all too often they mistake public participation for public relations. Keep a log of who is consulted where, when and how. It could come in useful at a later date if there is a public inquiry when developers make grandiose claims of public support for the project.
When the application is finally lodged, copies of the Environmental Statement (ES) and the Non-Technical Summary should be available at the LPA offices. If there are holes in their data or deficiencies in their argument do not hesitate to ask the LPA to require further information which they can do under Article 19 of the 1999 Regulations. These days much information may be found on the LPA’s website. However if the future of your area is dependent on that application, then you have a very good case for asking for a free copy of the ES. Haggling skills are essential. The ES repays careful study: the devil is often in the detail to be found in the appendices, particularly the statistical ones. However there is usually someone within the local community who is a happy number cruncher. Applicants must make a sufficient number of copies available either free or at a reasonable cost.
Although the LPA has 16 weeks in which to determine an EIA application, you council still only has 14 days to submit its views, unless you can negotiate a seven day extension with your LPA. In practice you might get longer as extracting information via Article 19 can take time. Hitting the ground running is a good idea but late submissions are often taken seriously by LPAs.
Since 1999 the EIA Regulations have been amended. There are several reasons. In 2006 the European Court of Justice ruled that Britain had failed to transpose the EIA Directive correctly by ignoring the possibility that the need for EIA could arise at the reserve matters stage in a big scheme:
where EIA should have been required at the outline stage but the LPA let it fall through the net;
where the LPA did not consider an EIA necessary at the outline stage but realised its mistake;
and where an EIA was required but it is now realised that further detail is essential.
Added into the mix has been the possibility of EIA for Enforcement cases and ROMPs: before you get too excited these are only Reviews of Minerals Permissions! All these amendments are set out in Statutory Instrument 2008 No. 2093. For the latest stimulating developments view EIA Regulations
The Views of Statutory Consultees
Whether the application is subject to the EIA process or not, which official bodies are consulted? Statutory Consultees are Government bodies which would have a professional or territorial interest in this development e.g. Natural England, the Environment Agency, the Highways Agency and other local authorities, not forgetting local councils. Details are set out in Articles 10 – 13 of the Town and Country Planning (General Development Procedures) Order 1995.
Then there are non-statutory consultees which could argue that they have “a legitimate expectation”, brought about by practice over many years. A failure to consult could result in the quashing of a decision, so it is more than a paper tiger. Just to add to life’s rich tapestry, there are also non-statutory, statutory consultees i.e. those which should be consulted by virtue of mention in law or policy pertaining to their particular responsibility e.g. the Health and Safety Executive, the Police and Regional Councils for Sport and Recreation.
Just check thatthe bodies concerned still have the same names! Keep track of what these bodies say on the LPA website, even if their views come in after the submission of your council. These could give you valuable clues as to how you play the later stages of the application process and any possible appeal.
WHOSE DECISION?
The Secretary of State
There is often mistrust between local councils and the LPA. There is no third party right of appeal in England, and with “cabinets” running LPA’s they are wont to hear but not listen to the well founded views of local people. Call-ins are an essential counterbalance to the misguided ambitions of LPAs.
What are the chances of getting an application taken out of their hands and the decision taken by the Secretary of State? Unfortunately the realistic answer is very slim. Only about 50 out of 500,000 applications per year get called in. The key to success is compliance with Circular 02/2009 The Town and Country Planning (Consultation) (England) Direction 2009. This Circular categorises developments which may be candidate for the call-in procedure: flood risk areas; major schemes; and developments within the Green Belt and World Heritage sites, outside town centres and involving playing fields. Within these categories the Circular applies various criteria. Beyond that, it is a question of interpretation.
There are ways of increasing your chances. If your local MP is in the Cabinet during an election year, it is a big help. A difference of opinion between various LPAs and government agencies is a huge help: Big Brother will feel moved to keep the peace. An unscheduled multi-faceted development may derail a development plan either in that area or, better still, in neighbouring territory.
For decades the Government Offices in the regions have played the role of the Secretary of State in terms of deciding whether or not to call-in a planning application. Now the Government Offices are to meet their demise in the bonfire of regional government, and the power will have to pass back to Whitehall when new legislation is in place, so watch this space.
In terms of putting pressure on either the Government Office or its successor, you cannot start too early in bombarding the assigned case officer with letters, articles, photographs, CDs etc. Enlist the help of a public relations person or at least someone who is adept at dealing with the media: slots on prime time TV and a furore in quality press are helpful. Get the Great and the Good involved but choose celebrities with care. Do not be surprised if your MP sits on the fence if some of his constituents would benefit and others would lose out if the development went ahead. That said, MPs will always act as “post boxes” between constituents and the Secretary of State.
The first sign that you are making an impact is that an Article 14 Direction is imposed on the application: TheTown and Country Planning (General Development Procedure) Order 1995. This means that the LPA can say “No” but not “Yes” to the application. This restriction may be applied indefinitely or for a given period whilst the Government Office gathers information or decides what to do. Make the most of this time by plying the case officer with more and more pertinent information. If the LPA has already made a resolution to pass an application but have yet to issue the permission with all the conditions etc, the powers that be will have to issue an Article 14.
Unfortunately the authorities can release the brakes just as quickly as they put them on: just before a public holiday is a favourite time, so that there is no one in the office when campaigners want to vent their spleens. Expect disappointment.
The Local Planning Authority
Given that so few applications are called-in by the Secretary of State. It follows that the rest are determined by the LPA. Sometimes mistrust is engendered between the local community and the LPA because it is known that talks have been going on, maybe for some time, between the latter and the developer. Do not be alarmed. This is a legitimate prelude to lodging a planning application, sanctioned by governments over many years. Ironing out the worst of the problems first can save everyone time later. After all, if your council wanted to extend the parish hall you would be entitled to have a word with the planners in your local LPA. That said an over-cosy atmosphere is likely to be built up, maybe over a couple of years between the applicant and the LPA which engenders a determination amongst officers that a development should go through not matter what. This is completely out of order but an unfortunate fact of life.
As you know your council has only 14 days in which to make a decision. In extenuating circumstances the case officer within the LPA can be persuaded to extend it to 21 days. How long will it take to process an application? Government guidance allows 16 weeks for those going through the EIA process; 13 weeks for large applications and 8 for the rest. After that the applicant has the right to go to appeal for non determination.
It is essential that your council’s view is formulated by a committee or sub-committee of the council rather than be delegated to the clerk or a member who knows a bit about planning. Apart from the fact that this is illegal, that person can find themselves subject to the wrath of individuals or the local community if it becomes known that their personal views were submitted in the name of the council to the LPA, so it in their best interest. If the decision is that of a committee, then it takes personalities out of the decision.
Many local councils have a permanent planning committee which meets once a fortnight throughout the year and the meeting is open to the public. This is a good practice because it is likely to catch all the planning decisions which affect your area. If you have a LPA Member who is also on the local council, they may have been leaned on by the LPA not to take part in debates on planning because they could lose their right to vote when it comes to Committee because it could “fetter their discretion”. The way forward is for your council to have its own policies on key issues within your area. A good starting point is to have your local Design Guide or Parish Plan which has been adopted by the LPA as a SPD. Failing that you can go back through a year’s worth of decisions and draw up simple policies on issues which come up frequently so that the line of your council is consistent. Thus you have a democratic mandate for taking a certain view on important issues within your area.
Applications in Neighbouring Local Council Areas
A word of warning: keep an eye on applications in neighbouring areas because they could affect your patch e.g. traffic. You may not be notified by the LPA and the neighbouring local council may not feel the application concerns them directly. This is where good relations between neighbouring local councils are vital. Similarly be a good neighbour and tip off a neighbouring council if a proposal is likely to affect them, as much or more than, your locality. All parties sending in their views at the development control stage can save much anguish later on.
It is imperative that the local council, in which a proposal would be sited, objects because otherwise they will be notified by the LPA if the applicant goes to an appeal at a later date. Thus they forgo the right to be a statutory party at a planning appeal. If more than one council is affected then a coalition can be formed to fight the case.
These days up to 90% of smaller planning applications are dealt with by delegated powers i.e. by officers. In the interests of speed, only the larger, more controversial applications go through the LPA’s planning committee. Either way there is no harm in lobbying the officer with your council’s views. If you think that it would be better if a given application was taken out of the hands of a given officer, then ask for it to go to committee. Given the politics of any local authority, only your council can decide which would be the better bet!
Tactically it is a huge advantage if the case officer’s report to committee reflects the views of your council: you are halfway to getting the decision you want. If not, all is not lost. Look on the LPA website and/or go into the civic offices and ask for the file on that application. It is interesting to read the views of others on this application and particularly the views of the Statutory Consultees and other well informed parties.
With big developments the glossy literature and endless statistical data can dazzle councillors who promptly switch off their critical faculties. Another temptation can be juicy offers of “planning gain” – see Appendix I. An application should never be permitted if it is inherently damaging to the locality just because of what it might bring with it in terms of community benefits. It may be that the developer is blackmailing the LPA with going to appeal and suing them for costs. It is essential that local councils allay the LPA’s fears.
COSTS
Unlike a court of law, costs are not awarded at an appeal to the winning side. Costs are a penalty for bad behaviour on the part of the developer, the LPA or even (rarely) third parties. Thus failing to meet deadlines, pulling out of the inquiry at the last moment etc are the sort of sins which can result in an award of costs against a party. If an LPA has good planning grounds for refusal and obey the rules of procedure, it has nothing to fear.
See Circular 03/09 Costs Awards in Appeals and other Planning Proceedings for details.
Your submission to the LPA will have been cited in brief but not in detail in the officer’s report. Therefore the members of the planning committee will not have got the full flavour of your objection. So the next stage is to email or write a letter to all the members of the Planning Committee spelling out your concerns about this application and sending them a copy of your letter of objection. This is your opportunity to go into details, allying yourselves with certain parties and citing well founded arguments against the views of your opponents. Give the members time to read it, but not enough time not forget it before the meeting! If the application is a big one which is going to Full Council of the LPA, then email it to all members. If there are key members who don’t “do” emails, then send them a paper copy on your council’s headed notepaper.
Unfortunately site visits are no longer the norm, so you may have to lobby for one. If it happens, it is imperative that the views put forward by the local committee are that of your council, not personal views. There are cases where local councils can take an active part in actually deciding applications e.g. through membership of national park authorities or being able to join the discussion of their district or borough council on a particular application, but these are very much the exception. Most LPAs allow people to speak for three minutes before Members start their debate. There are still LPAs which do not even allow speaking rights before the debate: your council should shame them into changing their minds. There will be an officer, often within the legal department of your LPA who is in charge of running meetings. Usually you have to notify him or her at least 24 hours before the meeting that you wish to speak.
Whoever is speaking on your council’s behalf must be succinct: three minutes isn’t long. At all costs avoid making allegations about certain officers or Members. Make a list of bullet points drawn from your detailed letter to the LPA. Obviously you can time yourself but many LPA’s indicate to speakers when they have only one minute to go, so that they can sum up their speech.
Assuming there is not a deferral e.g. to seek further information or for a site visit, the application will be refused, or permitted with conditions. Even a very simple application would be approved subject to the condition that the work starts within five years. The lack of finance during the current recession has meant that new development has five instead of three years in which to get started: a new application for a big scheme costs a lot of money. There are times when your council will have to accept that an application will go through but suitable conditions can make life easier for your community e.g. hours of operation or imaginative landscaping.
"You can’t always get what you want but, if you try, sometimes you get what you need." Mick Jagger. Rolling Stones
Since 2003 LPAs have had to give reasons for granting planning permission e.g. it accords with Policy X in the development plan. They have always had to give reasons for refusal. If your council wanted that application turned down, then the more reasons the LPA give for refusal the better, especially if they require technical justification, because if the developer goes to appeal, the LPA will have to fight on all these fronts. This means that the local council can support their LPA, and just add in local colour rather than having to cover all the issues in detail at a later date.
The LPA is likely to impose conditions, if only to specify the start date. More complex applications may require a planning obligation, colloquially known as planning gain or s.106 agreement. In future all schemes may incur the new Community Infrastructure Levy. Further details on all three can be found in Appendix I.
At what stage is permission given or refused? This may sound a strange question but the reality is that a Planning Committee passes a Resolution to permit or refuse an application. Afterwards officers have to work on the reasons for this decision. In addition there may be conditions to formulate and a planning obligation and/or contributions to the community infrastructure levy to hammer out. All this can take time, maybe a long time for big schemes. Keep an eye on what is happening because it is not unknown for big developers to lean in LPAs and get legal agreements watered down when they think no one is watching. There may also be changes in law and policy which can necessitate the LPA revisiting the application in the light of new circumstances. The Courts have ruled, in successive cases, that a decision is only made when the applicant actually receives the decision letter from the LPA. This date is also significant in terms of the six months allowed in which a developer can go to appeal (See Section 3) or the three months allowed before aggrieved parties can take an LPA through the Judicial Review Process (see Section 4).
If the LPA does not take a decision within eight weeks, the applicant has the right to go to appeal for “non-determination”. Developers will weigh up whether it would be quicker and/or less expensive to wait for the application to go to committee or go to appeal which inevitably takes time. If they do take the latter course, then the LPA has to decide what view it would have taken. Obviously if they were “minded to permit” the application the appeal would be withdrawn but if refusal is the verdict then the appeal will proceed.
ENFORCEMENT
There is no point in having a planning system unless control is enforced. The system illustrates the British love of pragmatism. On the one hand readers may be astonished to learn that it is not a criminal offence to carry out development without permission and on the other hand serious breaches can result in property being boarded up or demolished, or the owner being heavily fined or imprisoned. The determining factor is the gravity of the offence, given that transgressions may vary from, say, a wall being a few inches higher than it should be to the construction of a palatial pile on a green field site in the Green Belt.
Within LPAs the enforcement section tends to be the Cinderella of the planning department: cuts here are less noticeable in the short term. Even without staff shortages an LPA cannot know the whole of its territory as well as the local councils know their areas. It is often difficult for an officer on a flying visit to ascertain the exact nature of the problem. Those who live in the vicinity can help by keeping diaries of activities and the way in which amenity is affected e.g. noise levels at unsocial hours, heavy goods traffic in a residential area or advertising material pointing to a change of use from residential. Knowing your enforcement team is essential so that everyone can swing into action if necessary. However, the watch word is “slowly, slowly catch your monkey”. (see PPG 18 Enforcing Planning Control and DoE Circular 10/97).
TIME LIMITS
It is necessary to take action fairly quickly because a breach of planning control becomes immune from enforcement if a new structure has been substantially completed or a change of use has been operating for more than four years. A ten year rule applies to all other types of development e.g. flouting conditions apart from those relating to single residential units.
A discretionary approach to enforcement allows for a flexible response with voluntary solutions if appropriate. The key question is whether there is any harm to the public interest. Often a breach of control has occurred but the damage to amenity is minimal. Therefore the LPA would be wasting resources in pursuing the matter. Another scenario is that had the developer applied for permission he would have got it anyway because it accords with national and local policies: a retrospective application would regularise the situation. If this sounds unfair to everyone else, it is important to get this in perspective. Only 3% of applications are retrospective and a marginally lower percentage of these get permission than the regular applications; 80% - 85% rather than nearly 90%.
Most enforcement activity is directed against breaches of conditions rather than against the whole development. A Breach of Condition Notice allows no appeal. The aggrieved party would have to go to Judicial Review, risking paying everyone’s costs if they lose. A minimum response time of 28 days but this can be varied to allow a realistic time for compliance. If the activity is particularly damaging a Stop Notice may be served. However there is a sting in the tail – the LPA may have to pay compensation if they lose their case at appeal. Hence Stop Notices are almost as rare as hen’s teeth.
Serving an Enforcement Notice is a slow business because of the right of appeal. The decision to issue a Notice is made by the LPA Councillors on the basis of an Enforcement Report compiled on the site’s history by the officers. Copies of the Notice are served on all those with an interest in the land e.g. the owner, occupier, Mortgage Company or other lender. It may well be that there is a conflict of interest, such as the owner wanting to support the LPA against the occupier. The Notice spells out the steps to be taken to rectify the situation and a time limit for compliance. Obviously if buildings have to be reconstructed this could take time! If the offender wishes to appeal, this has to be lodged within the time limit. If there is an appeal, then local people who have kept diaries of events could be called as witnesses at the inquiry. Such appeals bear a closer resemblance to trials than other types of planning inquiries: they are a review of past events and witnesses may be asked to swear on oath. Not complying with an Enforcement Notice is a criminal offence. Property may have to be demolished, vacated, and repaired by the LPA at the owner’s expense or offenders imprisoned.
All this may take years but if an LPA pursues the matter, the consequences can be drastic. Who says the planning system has no teeth?